Citation Nr: 9919556
Decision Date: 07/16/99 Archive Date: 07/21/99
DOCKET NO. 94-16 970 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased evaluation for post-traumatic
stress disorder, currently evaluated as 50 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M.G. Mazzucchelli, Counsel
INTRODUCTION
The veteran served on active duty from June 1968 to November
1970. This appeal originally arises from an October 1993
rating decision of the Department of Veterans Affairs (VA),
St. Louis, Missouri, regional office. That rating decision
denied an evaluation in excess of 30 percent for post-
traumatic stress disorder and denied a compensable evaluation
for residuals of shrapnel wound scar, left hip, with retained
foreign body.
In June 1994, a hearing was held at the North Little Rock,
Arkansas, regional office (RO). An October 1994 hearing
officer's decision, in part, granted a 50 percent evaluation
for post-traumatic stress disorder, and denied a temporary
total evaluation under the provisions of 38 C.F.R. § 4.29
based on hospitalization from February 19 to April 2, 1993.
In August 1996, the Board of Veterans' Appeals (Board)
remanded the case for additional development. Subsequently,
a rating action of February 1997 continued the prior denials.
In April 1998, the Board issued a decision which denied the
veteran's claims for an evaluation in excess of 50 percent
for post-traumatic stress disorder and for a temporary total
evaluation under the provisions of 38 C.F.R. § 4.29. In a
November 1998 order, the United States Court of Appeals for
Veterans Claims (known as the Untied States Court of Veterans
Appeals prior to March 1, 1999) (hereinafter "the Court")
vacated the Board's decision that denied an increased
evaluation for post-traumatic stress disorder and remanded
the case for the Board to readjudicate that issue, and
dismissed the appeal as to the issue of a temporary total
evaluation.
FINDINGS OF FACT
1. The RO has obtained all relevant evidence necessary for
an equitable disposition of the veteran's claims.
2. The current medical findings show the presence of near-
continuous panic or depression affecting the ability to
function independently, impaired impulse control, difficulty
in adapting to stressful circumstances, and inability to
establish and maintain effective relationships. The current
medical findings do not indicate the presence of total
occupational and social impairment, due to gross impairment
in thought processes or communication; persistent delusions
or hallucinations; grossly inappropriate behavior; persistent
danger of hurting self or others; intermittent inability to
perform activities of daily living, disorientation to time or
place; or memory loss for names of close relatives, own
occupation, or own name; the veteran continues to work on a
part time basis, although he has difficulty with
preoccupation with previous trauma and daydreams about dead
bodies, he is not suicidal or homicidal, his memory and
thought processes are intact, he does not exhibit any
delusions or hallucinations, he is oriented to time, place
and person, and he is able to perform activities of daily
living.
3. The veteran's service connected post-traumatic stress
disorder is currently manifested by depression, sleep
disturbances, increased irritability, decreased
concentration, hypervigilance, increased startle response,
recurrent stressing memories of previous trauma on a daily
basis, nightmares two to three times per week, and flashbacks
of enemy bodies; these symptoms produce severe social and
industrial impairment. However, the evidence has not shown
that the veteran demonstrates gross repudiation of reality,
is virtually isolated in the community, or that he is
demonstrably unable to retain employment due to his post-
traumatic stress disorder.
CONCLUSION OF LAW
The criteria for an evaluation of 70 percent, and not in
excess thereof, for post-traumatic stress disorder, have been
met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part
4, Code 9411 (1995 & 1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran's claim is well grounded within the meaning of 38
U.S.C.A. § 5107(a)(West 1991). That is, he has presented a
claim which is plausible. All relevant facts have been
properly developed and no further assistance is required to
comply with the duty to assist mandated by 38 U.S.C.A. §
5107(a).
Service connection for post-traumatic stress disorder was
granted in June 1988. A 10 percent evaluation was assigned
from September 1986. An October 1992 rating decision
increased the evaluation to 30 percent, from September 1992.
An October 1994 hearing officer's decision granted a 50
percent evaluation for post-traumatic stress disorder. An
October 1994 rating decision assigned an effective date of
February 1993 for the 50 percent rating. The veteran
contends that he is entitled to a higher evaluation.
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
Part 4 (1998). Separate diagnostic codes identify the
various disabilities. The veteran's post-traumatic stress
disorder is rated under code 9411. New criteria with respect
to rating psychiatric disorders became effective November 7,
1996, and were published in the Federal Register of October
8, 1996 (61 Fed.Reg. 52695-52702). The RO, in its rating
action of February 1997, determined that the veteran was not
entitled to a higher evaluation under the new criteria.
Under those criteria, a 100 percent evaluation requires total
occupational and social impairment, due to such symptoms as:
gross impairment in thought processes or communication;
persistent delusions or hallucinations; grossly inappropriate
behavior; persistent danger of hurting self or others;
intermittent inability to perform activities of daily living
(including maintenance of minimal personal hygiene);
disorientation to time or place; memory loss for names of
close relatives, own occupation, or own name. A 70 percent
evaluation is appropriate where there is occupational and
social impairment, with deficiencies in most areas, such as
work, school, family relations, judgment, thinking, or mood,
due to such symptoms as: suicidal ideation; obsessional
rituals which interfere with routine activities; speech
intermittently illogical, obscure, or irrelevant; near-
continuous panic or depression affecting the ability to
function independently, appropriately, and effectively;
impaired impulse control (such as unprovoked irritability
with periods of violence); spatial disorientation; neglect of
personal appearance and hygiene; difficulty in adapting to
stressful circumstances (including work or a worklike
setting); inability to establish and maintain effective
relationships. The current 50 percent evaluation
contemplates occupational and social impairment with reduced
reliability and productivity due to such symptoms as:
flattened affect; circumstantial, circumlocutory, or
stereotyped speech; panic attacks more than once a week;
difficulty in understanding complex commands; impairment of
short and long term memory ( e.g., retention of only highly
learned material, forgetting to complete tasks); impaired
judgment; impaired abstract thinking; disturbances of
motivation and mood; difficulty in establishing and
maintaining effective work and social relationships.
38 C.F.R. Part 4, Diagnostic Code 9411 (1998).
The veteran filed his claim for an increased evaluation in
April 1993. The Court has held that where the law or
regulation changes after a claim has been filed or reopened
but before the administrative or judicial appeal process has
been concluded, the version most favorable to the appellant
should apply. Karnas v. Derwinski, 1 Vet. App. 308, 313
(1991).
Under the criteria in effect at the time the veteran's claim
was filed in April 1993, a 50 percent evaluation contemplated
that the ability to establish or maintain effective or
favorable relationships with people was considerably
impaired. By reason of psychoneurotic symptoms the
reliability, flexibility and efficiency levels are so reduced
as to result in considerable industrial impairment. A 70
percent evaluation required that the ability to establish and
maintain effective or favorable relationships with people was
severely impaired. The psychoneurotic symptoms are of such
severity and persistence that there was severe impairment in
the ability to obtain or retain employment. A 100 percent
evaluation required either virtual isolation in the
community, totally incapacitating psychoneurotic symptoms
bordering on gross repudiation of reality with disturbed
thought or behavioral processes associated with almost all
daily activities such as fantasy, confusion, panic and
explosions of aggressive energy resulting in profound retreat
from mature behavior, or the veteran must be demonstrably
unable to obtain or retain employment. 38 C.F.R. Part 4,
Diagnostic Code 9411 (1995).
The veteran was hospitalized in November 1996. The veteran
stated that he wanted to get "detox" from alcohol. He wanted
to get straight in order to get back his job. He was
drinking six to eight beers per day, and smoking marijuana.
He stated that he was currently homeless, and had a
girlfriend he saw occasionally. Alcohol dependency, post-
traumatic stress disorder, and depression were noted. His
Global Assessment of Functioning (GAF) score was noted as 45
on discharge.
A VA psychiatric examination was conducted in January 1997.
The veteran reported that he was not able to sleep more than
two to three hours at a time, and usually not more than four
hours per day. He stated that sometimes he was afraid to go
to sleep. The veteran stated that alcohol used to help his
sleep disturbances, but it no longer worked. He reported
increased irritability, decreased concentration,
hypervigilance, increased startle response to any sudden
noise, and recurrent stressing memories of previous trauma on
a daily basis. The veteran reported nightmares two to three
times per week, and flashbacks of enemy bodies. He reported
anhedonia, noting that he no longer enjoyed his previous
activities of hunting, shooting pool, attending family
reunions, camping, and watching movies. He stated that he
felt detached from others, although he visited his daughter
once in awhile. The veteran stated that he was a loner, but
deep down it was hard. He also reported decreased energy
level, fatigue, and a widely varying appetite. He stated
that he no longer had suicidal ideation. The veteran stated
that some days life was worth living. He stated that his
depression had increased over the past year, but sometimes he
would feel "so high" for a couple of hours. The veteran
stated that he was bothered by his lack of a relationship
with his family, which he felt he could not reestablish. He
stated that he currently drank a six-pack of beer every other
day, and that he drank because of joint pains and sometimes
to not have to think. The veteran stated that he was
previously married for 15 years, and had two children with
whom he was not close. He currently lived alone at his
mother's house, had no close friends, and did not attend
church because it made him uncomfortable. The veteran
reported that he was currently employed as an over-the-road
truck driver on a part-time basis. He stated that he often
worked too hard, and got laid off once in awhile to take a
break. He noted that he feared he would run over someone
since he often had daydreams about dead bodies and wounded
people that he could not help. He stated that he was unable
to do his current job on a full-time basis, that he just did
not "have it." He was considering going back to farming,
since he did not feel safe in his current job at present.
On examination, the veteran was moderately groomed. His
affect was mildly anxious, and he was on the verge of tears
on several occasions. His speech was clear and coherent, but
he exhibited a delayed reaction time to the questions. He
denied active current suicidal or homicidal thoughts,
hallucinatory experiences, delusions, or paranoid thoughts.
He did well on cognitive ability testing. Memory functions
seemed fair, and his concentration was at a moderate level.
Insight was fair, with judgment grossly intact. The
diagnoses were post-traumatic stress disorder, moderate to
severe; dysthymic disorder; and history of alcohol abuse.
The GAF score was 40-50, which included social isolation, low
self-esteem, hopelessness and the affect of the post-
traumatic stress disorder symptoms. The examiner noted that
the veteran still had some motivation and desire, for example
switching his job, a desire to re-establish the past
relationship with his family.
The Board finds that the veteran's current disability most
closely meets the 70 percent evaluation under the new
regulations. The criteria for that evaluation include: near-
continuous panic or depression affecting the ability to
function independently, impaired impulse control, difficulty
in adapting to stressful circumstances, and inability to
establish and maintain effective relationships, all of which
the veteran manifests to some extent. 38 C.F.R. Part 4, Code
9411 (1998).
The current medical findings do not indicate the presence of
total occupational and social impairment, due to gross
impairment in thought processes or communication; persistent
delusions or hallucinations; grossly inappropriate behavior;
persistent danger of hurting self or others; intermittent
inability to perform activities of daily living,
disorientation to time or place; or memory loss for names of
close relatives, own occupation, or own name, which are
contemplated for a 100 percent evaluation. The medical
findings show that the veteran continues to work on a part
time basis, although he has difficulty with preoccupation
with previous trauma and daydreams about dead bodies, he is
not suicidal or homicidal, his memory and thought processes
are intact, he does not exhibit any delusions or
hallucinations, he is oriented to time, place and person, and
he is able to perform activities of daily living.
Nor is the veteran entitled to a 100 percent evaluation under
the regulations in effect at the time the claim for increase
was filed: the record does not show that the veteran
demonstrats gross repudiation of reality, is virtually
isolated in the community, or that he is demonstrably unable
to retain employment. While the examiners have noted that
the veteran no longer attended family reunions, lived alone
at his mother's house, had no close friends, and did not
attend church because it made him uncomfortable, the Board
finds that the evidence does not show that the veteran is
virtually isolated in the community, since he does
occasionally visit his daughter and is able to maintain a
part-time job, albeit with difficulty. Based on the
foregoing, the Board finds that the veteran is most
appropriately rated at the 70 percent level under the old
regulations, which contemplates a severe level of social and
industrial impairment; this is supported by the GAF scores
reported in November 1996 and January 1997, which indicate
serious to major impairment in such areas as social,
occupational or family functioning.
Accordingly, the Board has concluded that the evidence
establishes that the veteran is entitled to an evaluation of
70 percent, and not in excess thereof, under both the new and
old regulations governing the rating of post-traumatic stress
disorder. 38 C.F.R. Part 4, Code 9411 (1995 & 1998). The
Board notes that it has considered the provisions of
38 C.F.R. §§ 4.3, 4.7 (1998) in its determination that the
veteran is not entitled to a 100 percent evaluation in this
case.
ORDER
A 70 percent evaluation, and no higher, for post-traumatic
stress disorder, is granted.
BETTINA S. CALLAWAY
Member, Board of Veterans' Appeals